BY DAVID ABDULAH Sunday, September 20 2009

That we are at a crucial juncture in our history has been emphasised by the address by Chief Justice Ivor Archie at the opening of the Law Term on Wednesday. The Chief Justice made a very important departure from the traditional format of a Law Term opening address which was a reporting on the status of the Judiciary.

The CJ instead, and quite rightly in my view, chose to comment on the Draft Working Document on the Constitution. His address was a well researched, studied analysis of the Draft against the background of principles of governance that have been recognised here in Trinidad and Tobago and throughout what we can call (western) liberal democracies. Those principles are, as the CJ defined: “the paramountcy of the rule of law; the separation of powers and the independence of the judiciary”.

The Chief Justice then identified the ways in which the Draft Constitution went against and violated those very principles. His address should be read by every thinking citizen.

It is a historic statement about the nature of the social contract which our Constitution is supposed to represent. Hear the CJ: “The proposed constitution represents something far more fundamental than an amendment or revision of the existing constitutional arrangements. It is a complete rewrite of the social contract that is to govern the way in which our institutions function and inter-relate.”

That statement alone is a wake-up call to all citizens to get involved in the deliberations about the Draft Constitution. Of course, one can take different positions on how to approach the process.

One option is to go to the public “consultations” that are to be led by Dr Hamid Ghany and to articulate a critique of the Draft and put forward alternative proposals. Another option is to demand its immediate recall and to start a process that is transparent and participatory.

With respect to the second option it is important to remember that there was already one series of discussions on the “Ellis Clarke Draft” and the “Principles of Fairness Group’s Draft”. Those consultations were conducted by Professors La Guerre and Ryan. To date, the public has not had the benefit of their report. Nor have we been told how the new Draft relates to those earlier Drafts and why the new Draft has very different proposals from the “Ellis Clarke Draft”.

The entire process to date has been manipulated and this is good enough reason to call for the throwing away of the new Draft and the establishment of a proper process of reform.

The Constitution Reform Forum has advanced proposals for a process that would enable a very serious discussion on the constitutional change. We proposed the establishment of a Secretariat which would be responsible for implementing the process. The first step in the process would be public education about the existing Constitution, what a Constitution should seek to achieve, the options available for achieving same and the pros and cons of each option.

In this way, citizens could make an informed decision about their preferred option. It would also facilitate a real political debate on the merits and demerits of each option. The options would then be put to a vote in a referendum and the Draft Constitution would emerge out of the outcome of the Referendum.

The Draft would then be subject to public and parliamentary debate before being finally adopted.

Citizens should demand that we have the right process since a wrong process will inevitably lead to either a wrong outcome (a bad constitution) or a constitution, which even if not bad has no buy in from citizens and therefore lacks legitimacy.

But back to the new Draft, which Mr. Manning has claimed is not his. He also has not said who the author(s) of the new Draft is (are). The popular view is that it is his Draft. This is why he organised the so called “PNM college” meetings to argue the case for the Draft.

The only logical reason why he has gone out to campaign for the adoption of the new Draft is because he believes that this is the constitution that he wants. Indeed, his language in those meetings suggested that it already is a done deal – at least in his imagination.

If anyone had doubts about Mr. Manning being the author, we now have some proof. The Cabinet has decided that the government must respond to the Chief Justice. Why? All the CJ did was to express his views on the Draft as he is entitled to. After all he and the Judiciary are a stakeholder in the society.

And Mr. Manning called on all and sundry to comment, which is precisely what Justice Archie did. One would have thought that the CJ’s comments, like all others, would be an input to Dr. Ghany’s report.